Richard (Rick) Karlquist wrote:
>
>
> jimlux wrote:
>
>> A bit of forewarned is fore-armed. They have to ("have to" as in
>> legally required, in most places) show you the restrictions and
>> covenants early enough that you can make the decision about whether
>> you want to make the offer (or you offer contingent on review of the
>> docs).
>
> I don't know who "they" is. AFAIK, the seller isn't required to do
> a title search and you're depending on the title company to do that,
> but they may be incompetent.
That may well be incompetent or lazy.. it's why title insurance exists.
But I was referring to CC&Rs, which in most cases, have to be available
for you to study(since you're agreeing to abide by them).
If the seller "forgot" or the Title company didn't identify them, then
the whole transaction could be subject to recission (or more likely,
litigation), because one party believes you're subject to a set of rules
that you didn't agree to.
Typically, there would be some sort of settlement and compensation here,
and depending on the "deal", it might be paid by seller, TI company, or
worst case, buyer. (pretty hard for the buyer to get stuck here, unless
they willfully screwed up.. the law tends to protect the buyer in cases
of missing disclosures).
Granted, recission of the deal may not be what you want. And determining
damages for not being able to erect a tower when you thought you could
might be a project for many attorneys for many years and cost many, many
dollars.
One one transaction, my title company
> had the wrong legal description for the lot. On another, my title
> company missed that fact that the seller did not have legal title to
> the property. The reason why the seller did not have good title is
> that he used that same title company to transfer the title into his
> trust, and they transferred it into someone else's trust. Another
> property's legal description refers to an unobtainable map filed in
> 1881, although they can tell you all the previous owners back to the
> king of Spain :-) We may or may not own the mineral rights to it. No
> one, the seller, title company or county recorder could nail these
> things down.
And, if push ever came to shove on this sort of thing, the TI carrier is
probably holding the bag, if your purchase was dependent on some aspect
of the title that the TI company insured.
Here in California, we're actually in pretty good shape for this kind of
thing (at least for recording of CC&Rs... as Rick mentions, ownership
and mineral rights, lots of which date back to the pre-gold-rush era,
can be somewhat tricky, especially if the records were kept in SF in
1906.. but CC&Rs are a relatively new thing, and the county files are
generally in good shape.)
Back east, it's much worse. Surveys are trickier (no PLSS to tie to),
lots of records have been lost to flood or disaster, etc. Enormous
quantities of records were destroyed in New Orleans in Katrina, creating
all sorts of title work for the next century, in an area that was
already complex and literally shifting.
The good news is that it either has no CC&R's, or if it
> ever did, no one can produce them. On other properties, CC&R's may be
> covered by reference to another subdivision, with a 1 sentence
> pointer. OTOH, if a property has CC&R's, there may be no effective
> enforcement, and you may be OK anyway. Many towers are up in CC&R
> neighborhoods with no problem. No simple answer, except ask the
> locals.
Very much so.
(A friend of mine, though, discovered to his dismay that even though the
HOA went bankrupt years ago, any individual owner could take on
enforcement...)
>
> Rick N6RK
> (I'm not a lawyer :-)
>
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